It is an advisory role. But one which is supposed to be controlled by the legislative branch. But it turns out there are fewer balls in the federal government than the inhabitants of your average pet shelter post-neutering.
Courts (usually) understand that their power is limited by reality. If they decide that AI training is not fair use, then it will not prevent AI training, because Europe and China will continue. All it will do is cripple the US for a time before congress can pass legislation to undo it.
Difficulty of enforcement never worked as an argument in the War On Drugs. Or even in regular copyright enforcement, really. I don't see why AI megacorps should get a free pass to steal all the IP in the world simply because it's profitable.
The right people benefit from AI training being fair use, and the wrong people benefit from the war on drugs and from copyright infringement. There's no nuance or ideological reasons beyond that really. Need there be, even if we would choose differently?
It is true of all IP law, which is why there are international agreements on IP law.
But Europe already seems to be a lot more restrictive than the US on this front, so it's the US making it a race to the bottom there. China is probably a different matter.
https://www.theverge.com/news/664768/trump-fires-us-copyrigh...
"Your honor it is not fair use, we fired the guy who said it was"
Ah, must be Monday in the US.
https://www.copyright.gov/orphan/
If red tape is being untangled, let's address longstanding issues.
But Europe already seems to be a lot more restrictive than the US on this front, so it's the US making it a race to the bottom there. China is probably a different matter.